Rice v. State

• Decision Date: 11 May 1932
• Docket Number: No. 15145.,15145.
• Citation: 51 S.W.2d 364
• Parties: RICE v. STATE.
• Court: Texas Court of Criminal Appeals

Page 364

51 S.W.2d 364

RICE v. STATE.

No. 15145.

Court of Criminal Appeals of Texas.

May 11, 1932.

State's Rehearing Denied June 15, 1932.

Commissioners' Decision.

Appeal from District Court, Coleman County; E. J. Miller, Judge.

Willie Rice was convicted of conspiracy to rob, and he appeals.

Reversed and remanded.

Early & Johnson, of Brownwood, and Baker & Baker, of Coleman, for appellant.

C. L. South, Dist. Atty., of Coleman, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, J.

The offense is conspiracy to rob; the punishment, confinement in the penitentiary for two years.

It was charged in the indictment that appellant, Charlie Rice, Joe Rice, Chick McKay, H. E. Bell, and Ollice Woods, acting together, unlawfully conspired, combined, confederated, and entered into a positive agreement with each other to commit the offense of robbery. We have not undertaken to set out the indictment, but merely call attention to the nature of the offense charged therein.

At 7:30 o'clock in the morning of January 6, 1930, Mr. Roberts, cashier of the Lohn State Bank, went to the bank preparatory to opening same for the day's business. As soon as he unlocked the front door and entered, he was confronted by a man with a drawn pistol, who required him to unlock the vault and deliver to him approximately $1,400 of the bank's money. The money consisted of bills of different denomination, and silver— mostly nickels, dimes, quarters, and half dollars. No silver dollars were taken. The robber was accompanied by another man. Mr. Roberts could not identify this other man. Leaving in a Ford car, the robber and his companion left town. Several hours later officers went to a vacant house in Coleman county which was several miles away from the scene of the robbery. This house had been occupied by Joe Rice, appellant's brother. Approaching the vacant house, the officers saw five men flee therefrom. A gun battle ensued in which Ollice Woods was killed. He was identified by Mr. Roberts as the person who perpetrated the actual robbery. The officers found some currency in the vacant house. Peculiar clips that Mr. Roberts had placed on the currency enabled him to identify it as being the bank's money. A witness for the state testified that he saw appellant shortly after the gun battle, and that he had in his hand what appeared to be a four-pound lard bucket. Later the officers went to the place appellant had been seen, and found a lard bucket filled with silver coins— nickels, dimes, quarters, and half dollars. The circumstances were sufficient to show that appellant was one of the men who fled from the house at the time the officers approached. There was no testimony to the effect that appellant was present at the time the robbery was perpetrated. On the contrary, a witness for the state positively placed appellant at another and different place at the time of the actual robbery. Testifying in his own behalf, appellant denied any connection with the offense. Appellant had no control over the vacant house, but lived at another and different place. The Ford automobile used by the robber did not belong to appellant, but belonged to appellant's brother. Appellant had no interest in it. Other than the circumstances that appellant fled from the vacant house and that he had in his hand a can which was later found to contain money, and that he had been associated with his brothers and Woods prior to the robbery, we find nothing in the testimony tending to show that appellant was connected with the commission of the offense.

Article 1622, P. C., defines a conspiracy as an agreement entered into between two or more persons to commit a felony. Article 1624, P. C., provides: "Before a conviction can be had for the offense of conspiracy, it must appear that there was a positive agreement to commit a felony. It will not be sufficient that such agreement was contemplated by the parties charged."

The substantive offense of conspiracy to commit a felony being complete when the contract or conspiracy is entered into, it is an independent offense for...